HKSAR v. YAMAGUCHI MASAKI

HCCC 37/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 37 OF 2014

-----------------

---------------------------------
Transcript of the Audio Recording
of the Sentence in the above Case
---------------------------------

COURT: The defendant has pleaded guilty to one count of trafficking in a dangerous drug, contrary to Section 4 of the Dangerous Drugs Ordinance.

Summary of facts revealed the followings.

In the evening on 21 March 2013, the defendant was intercepted by Customs officers at the Hong Kong International Airport after checking in for a flight to Korea. In one suitcase which the defendant had checked in earlier, Customs officers found six packets of suspected dangerous drug. The defendant was then arrested and cautioned.

Subsequently, government chemist confirmed the suspected dangerous drug to be 5.79 kilogrammes of methamphetamine hydrochloride. Its street value was estimated to be HK$4.7 million.

The defendant is a Japanese national, aged 46, and unemployed at the time of his arrest.

Medical report submitted shows that the defendant suffers from liver cirrhosis. According to the defendant, the only cure for that condition is liver transplant. As a result of that, according to the defendant, he yielded to the temptation of getting money for that future operation.

Well, first of all, looking at the defendant’s medical report, I do not think that his liver condition is as severe as he claims.

Secondly, personal circumstances play little role in a case as serious as the present one.

At the material time when the offence took place, there was, strictly speaking, no guidelines or tariff for trafficking “Ice” in excess of 600 grammes, except to say that the sentence ought to be 18 years and above.

Over the years, “Ice” becomes more popular in Hong Kong and its seizure made by the law enforcement agencies also increased significantly. Cases involving huge amount of “Ice” reached this court.

Due to the lack of guideline in sentencing “Ice” beyond 600 grammes, sentences handed down become less than ideal and sometimes create, understandably, injustice in individual case.

As a result, the Court of Appeal in 2014, in the case of HKSAR v Tam Yi Chun, CACC 524/2011, laid down a revised tariff. This new tariff, reflecting the growing popularity of “Ice” and the huge influx into Hong Kong, increases the sentences in the range of 1 to 2 years, depending on the quantity of “Ice” involved.

Although this new tariff postdates the present case, it does provide a useful guidance to the sentencing court. When revising the tariff, the Court of Appeal also took into account various sentences that the lower court had passed.

According to the new revised tariff, trafficking 4 to 15 kilogrammes of “Ice”, the sentence should be one of 26 to 30 years’ imprisonment. In other words, had the defendant committed the present offence after June 2014, he would have received a sentence of at least 26 years, based solely on the quantity of the drug.

Given what I have just said about the difference between the old and new tariff, I am prepared to give to the defendant the maximum benefit in this case.

As such, the starting base for trafficking in 5.79 kilogrammes of “Ice” is set at 24 years’ imprisonment, based solely on quantity.

The present case, of course, involves one obvious aggravating factor, namely, the international element. For that, an extra 2 years will be added.

Starting point in this case is therefore set at one of 26 years’ imprisonment.

The defendant will be given his usual one-third discount for his plea, although at one stage I wonder whether he is entitled to that.

In conclusion, the defendant is sentenced to 17 years and 4 months’ imprisonment for the offence he committed on 21 March 2013.